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PARLIAMENTARY PRIVILEGE: to protect unfettered democratic debate in the House & ability of MPs raiseissues w/out fear

• (absolute but may be waived)

Statutory basis of privilege in NZ

Section 242(1) of the Legislature Act 1908

The House of Representatives and the Committees and members shall hold,enjoy and exercise such privileges, immunities and powers that were held by theCommons House of Parliament of Great Britain and Ireland.

Article 9 of the Bill of Rights 1688 applies as law in NZ and is the foundationof freedom of speech in the House:

“That the freedom of speech and debates or proceedings in Parliament ought notto be impeached or questioned in any court or place out of Parliament”

1. Fundamental Privilege

Uninhibited speech is the quintessential requirement of open debate (PhillipJoseph).

Historically, the members‟ guarantee of free speech secured the independence

of the House of Parliament from the Crown. Today, the privilege ensuresuninhabited discussion in debates without fear of recrimination or impeachmentby any court, person or body. Members may speak without fear of civil liability(Dillon v Balfour [1879]) or criminal prosecution for sedition or criminal libel(Eliot‟s case [1629]).

Article 9 also secures the power of the House to punish members for abuse of the privilege.

2. “Proceedings in Parliament”

The privilege of free speech covers all “proceedings in parliament”. Immunity

from suit or prosecution extends to parliamentary staff in their diverse officialcapacities and also to members of public involved in parliamentary proceedings.



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No action will lie against a member of the public for defamatory testimonybefore a select committee or for a petition presented to Parliament.

3. Any Court or place out of Parliament

Under art 9, freedom of speech is a corporate privilege that protects Parliaments proceedings against inquiry or examination in “any court or place out of Parliament”. This includes a royal commission.

In Peters v Davison the full court was critical of the Davison Commission of Inquiry for drawing adverse inferences about the plaintiff from the plaintiff‟s

speeches in the House.

4. To “impeach” or “question”

Article 9 does not render inadmissible in court everything that is said or done inparliamentary proceedings. Article 9 has arisen for examination in defamationactions in which the litigants have sought to lead evidence of speeches in theHouse.

In Prebble v TVNZ [1994] the Privy Council said that what is crucial is thepurpose for which the evidence is sought, not its origin or source as part of the

parliamentary record.

5. Words or deeds covered

Covers all functions associated with the law-making process: for example thedrafting of bills, introductory speeches, debates, select committee hearings, andeven the A-G report ( Mangawaro Enterprises Ltd v A-G [1994] an allegedfailure by the A-G to report to the House a bill that was claimed to beinconsistent with BORA was a proceeding in Parliament and protected under art

9).

- Caucus meetings to not qualify as “proceedings in Parliament”. - Member‟s communications are protected if they relate to proceedings in

Parliament

6. Parliamentary papers, reports and broadcast of proceedings

Art 9 does not protect the publication of reports proceeding outside Parliament.

Members who publish copies of speeches they have made in the House will not



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be covered. Defamatory statements will be actionable and their publishersliable even though the original statements are privileged.

Stockdale v Hansard [1839] established that it was no defence at common lawthat a report of parliamentary proceedings was published by order of the House.However, New Zealand enacted the Privileges Act 1856 which is now re-enacted under the Legislature Act 1908 (amended in 1992) and the DefamationAct 1992 to protect against defamation.

7. Defences for Defamation

S 13 of the Defamation Act 1992 confers absolute protection on the publication,carried out by or under the authority of the House of Representatives, of anydocument or official record of the proceedings of the House.

S 16(1) qualified privilege; no action for defamation may lie for the publicationof a fair and accurate report of proceedings in the House.

The defence is defeasible and will be rebutted if the plaintiff can show impropermotive. The plaintiff must establish that the defendant was “predominantly

motivated by ill will towards the plaintiff, or otherwise took improper advantageof the occasion of publication (s 19 Defamation Act)

8. Media

Journalists reporting parliamentary reports or papers may incur criminal or civilliability for sedition, contempt of court, breach of copyright, breach of confidentiality, or breach of the State‟s law and order or security laws.

Defamation is a tort designed to protect reputation. The law imposes liabilitywhere this communication to third persons of something that would tend to

lower their estimation of the plaintiff, and the defendant does not prove adefence.

Qualified Privilege: to protect democratic debate in public arena and the ability of citizens to beinformed

TVNZ v. Prebble



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Prebble was Minister for State-Owned Enterprises and sues TVNZ fordefamation saying the programme meant that he secretly sold state assets inreturn for donations to the Labour Party and that he had arranged for all

incriminating documents to be destroyed.

TVNZ denies that the programme bore that meanings alleged and even if theyhad, it was justified as it is a matter of public concern and protected by qualifiedprivilege.

Judge said only reputation in the sector of the plaintiff‟s life is relevant to

alleged defamation.

• If Member of Parliament sues someone for defamation, that memberwaives Parliamentary privilege about what s/he has said in Parliament

• If a fair trial cannot be had without reference to others‟ statements in

Parliament, the plaintiff MoP must either gain the consent of theHouse/those MPs to waive their privilege, or must forgo the suit.

Lange v. Atkinson

Lange applied to strike out the respondents‟ defence that certain allegedly

defamatory statements were protected by the defences of political expressionand qualified privilege. The statements made by North and South magazinewere a critical review of Lange‟s performance as a politician and PM and castdoubt of his recollection of certain events in which he was involved.

Held

1. The defence of qualified privilege applied to generally-published statementsmade about the actions and qualities of those currently or formerly elected toParliament and those with aspirations to be members, so far as those actions andqualities directly affected their capacity to meet their public responsibilities.Therefore what is a public concern and not of private concern.

Appeal was dismissed.

High Court Judgement



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Importance of Right to Freedom of Expression and the protection of reputationhad to be balanced. Electoral rights affirmed in s 12 of NZBORA 1990, cannotbe properly exercised without sufficient knowledge about policies and

candidates. ICCPR, art 19, “everyone shall have the right to hold opinionswithout interference and everyone shall have the right to freedom of expressionincluding the right to impart, seek and receive information”.

But there is also s5 of BORA “justified limitations”

Elias J defined “political discussion” as “...discussion which bears upon the

function of electors in a representative democracy by developing andencouraging views upon govt”.

The media shouldn‟t be treated more restrictively than individuals. Thefreedom protected under s 14 of BORA is not simply freedom to impart but alsofreedom to seek and receive as well. “Inhibition of media expression

disadvantages those who would hear”.

The plaintiff doesn‟t have to prove that the words are false, this falls on thedefendant to prove that the defamatory words are true in substance (not everyminor detail).

If the words are an opinion, the defendant must prove it is their genuine honestopinion.

Qualified Privilege is granted “for the common convenience and welfare of society” (Toogood v Spyring [1834]). The defendant does not enjoy privilegeunless the recipient of the publication had a legitimate legal, social or moralduty or interest to impart the information.

• Qualified Privilege protects speech critical of an elected official‟s (or an

aspiring to be elected official, or a past elected official) actions andqualifications so far as those directly affect that person‟s capacity to meet

public responsibility, and so long as any material falsity in the speech inquestion was not made with ill will or for improper advantage (actualmalice)s 19 of Defamation Act 1992 = Rebuttal of qualified privilege due tomalice

• Absolute Privilege where a defendant has unqualified protection and no

defamation proceedings can successfully be brought even if the defendant



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was acting maliciously. These occur when it is in the public interest forthe person to have complete freedom of expression without exposure orrisk of litigation.

LEGITIMACY & NECESSITY:

The Legitmacy of the government is usually tied to the legitimacy of theconstitution. The constitution gives power the authority. We accept parliamentto have power to legally legislate because of the constitution. Authority is notdue to fear but because there is a claim to the moral right to govern. There arethree possible claims to legitimate authority according to Beran, H. These are

procedural, substantive and effective.

1. Procedural - gained power in the procedurally „correct‟ way. Eg. The Treaty

of Waitangi; e.g. by election with secret ballot and each person has the claim tovote.

2. Substantive - gained power in a procedurally irregular way, but uses power todo good things.

3. Effective - is governing effectively.

i) the people are going along with it and habitually following the commandswithout a lot of coercion – (Kelsen)

ii) can tell who legitimate govt is by the people accepting the power of therevolutionary govt. People have stopped challenging the authority – (Austin).

iii) Courts assert their authority by being umpires between revolutionarymovements and different claims to authority and they determine what counts aslegitimate authority.

Grundnorm (Kelson)i) will be established in fact and

ii) all legal basis of authority will go back to that.

In most systems when you go back historically, there will have been arevolution. NZ has had an evolving govt.



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There are two ways in which a grundnorm changes and that is by

(a) prescribed methods (most systems have an internal way of changing the

grundnorm) or(b)illegally (revolution).

According to Kelson, H “If [the revolutionaries] succeed, if the old order ceases

and the new order begins to be efficacious....then this order is considered as avalid order [because the people are conforming to the new order]....If therevolutionaries fail....their undertaking is interpreted, not as legal...but as anillegal act, as the crime of treason.”

For example the Rhodesian case, the Courts had to decide whether the law stillexists even though the grundnorm has changed. The courts decide ordinary lawpersists even though there has been a revolution.

Efficacity: in order to know if the govt is efficacious, need to define the term....

It is defined as “is it working?” For example the Mitchell case ( Mitchell v

Director of Public Prosecutions [1986]) – it‟s working and also is not

oppressive, the people are accepting it. Efficacy can be recognised by thewillingness of the people to obey and through freedom of speech (people could

protest if they wanted but they are not and there is an opportunity to vote).

Efficacy and Legitimacy

E.g. the Mitchell case The revolution was successful because the Govt becamefirmly established and there was no competitor (as tested in the Rhodesiancase). The govt was effective because the people were obeying and conformingto mandates and their obedience and conformity was due to popular acceptanceand support and not due to coercion or fear of force. The Mitchell case isimportant because it showed that in order for the govt to be considered

legitimate there must be evidence of efficacy and it must not “appear” that theregime was oppressive and undemocratic.

In the Fiji case, the Court of Appeal decided the interim govt had failed todischarge its onus of establishing that the new regime was “effective”.

The effectiveness test:

1. a revolutionary govt must be firmly established (no other govt vying for

power)



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2. its administration must be effective (the maj of people are behaving inconformity wherewith

In Mitchell v DPP the court identified two additional elements:

3. conformity and obedience must be due to popular acceptance and support notthrough coercion or fear of force4. must not appear that the regime was oppressive and undemocratic

Doctrine of Necessity

When the State (including the grundnorm) is under threat, the doctrine of necessity will exist.

SALUS POPULI SUPREMA LEX: (Latin "Let the good of the people be thesupreme law" or "The welfare of the people shall be the supreme law")

A constitution is not a suicide pact. If you have to do unconstitutional things inorder to save the people or the State, then you should implement the doctrine of

necessity. It is the GG‟s main role to protect the constitution and so doctrine of necessity will usually be cited by the GG.

Joseph, A “the doctrine provides for the legal recognition of unconstitutional

acts: it characterises as lawful that which the constitution holds to beunlawful….the ends justify the means”. To avoid legal chaos.

There are criteria that have been set out for judging whether a situation is one justifying the departure from the Constitutional requirements.

The Criteria:

1. Imperative necessity from exceptional circumstances unforeseen by theconstitution that requires immediate action to preserve a vital aspect of the State

2. No other choice reasonably available (Mitchell test)

Eg. The Mitchell test in the Rhodesian case. It‟s the courts invoking the

doctrine of necessity even though technically the judges should resign.



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3. Action is reasonably necessary to maintain social order, peace and goodgovernment, and is no more or of no longer duration than necessary

4. Doesn‟t impair existing constitutional rights

5. Doesn‟t solely promote the revolution (or other unforeseen crisis)

Mitchell and Others v Director of Public Prosecutions and Another

Decision of Grenadan Court of Appeal which upheld the unconstitutional actsand legislation of a revolutionary regime. When this regime was toppled, thecourt held the Governor-General was entitled to assume control for restoringorder.

“Proclamations the G-G made were validated”.... “based on law of necessity”

“In circumstances of chaos and breakdown of law and order following the

overthrow of the revolutionary regime, the G-G, as the constitutional Head of State, who under the Constitution represented the executive powers of the Stateand shared legislative sovereignty was entitled to assume control of the affairs

of State”

the Fiji case: Rep. of Fiji v Chadrika [2001].

Court held that the 1997 Constitution must continue to represent legal order of Fiji and any actions taken that were “extra-constitutional” cease to apply once

the crisis has passed and are temporary in nature. The court pronounced thecoup unsuccessful and held the doctrine of necessity could not be used tooverthrow the 1997 Fiji Constitution.

The Rhodesian case: Madzimbutu v Lardner-Burke [1968]

Lord Pearce applying the doctrine of necessity after Southern Rhodesia haddeclared independence in 1965. High court asserted that laws or regulationsmade in the public interest and for the ordinary purposed of maintaining lawand order were accepted.

Historical recent Crises of Legitimacy in NZ



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1. Fitzgerald v Muldoon2. Clyde Dam SagaParliament acting as courts and putting aside the independence of the courts

3. State Sector restructuring and privatisation processesThe govt was elected by only 30% of the population and majority of NZ wasopposed to this...therefore this is not legitimate law.

Rule of Law

The govt has to act under the law.

According to Dicey it is defined as:1. Government according to the law2. Equality before the law3. Liberty of the individual

According to Joseph, A. rule of law is applied:1. Powers must derive from the law (Fitzgerald v Muldoon)2. Subjection to judicial process (Judicature Act 1972)3. Common law rights and protections (NZBORA)

Fitzgerald v Muldoon [1976] Muldoon made a press statement declaring the

end of a statutory law (the New Zealand Superannuation Act 1974) but Wild CJruled the Prime Minister had violated Article 1 of the Bill of Rights 1688saying, „That the pretended power of suspending of laws or the execution of

laws by regal authority without consent of Parliament is illegal”.1

Rule of law requires that law is applied equally to each person in that category.This has been breached in the past with the example of the Clyde Dam Saga where the government announced it would pass a special legislation for theClyde hydro-electric dam (the Clutha Development Empowering Act 1982)

after a court decision displeased the Executive. This is a clear abuse of rule of law (government according to law). However, this would not have been abreach of rule of law if a general law reform of the relevant statute had beenmade2.

Constitutionalism

Is a proposition that State Power is bounded by rules about:

1

2 NZLR 290 (CA)2 Brookfield, FM “High courts, high dam, high policy” *1983+ Recent Law 62



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1. the extent of State Power2. how that power shall be exercised

3. how the constitutional rules themselves are changed

Basis for Constitutionalism

According to de Smith (numbers 1-4)

1. Govt accountable to an independent authorityThe govt (those who administer the law) must be accountable to an independentauthority. E.g the Ombudsman who must not have any repercussions from thegovt for doing their job.

2. Regular, broadly open elections, which elect the governors and the lawmakers.In NZ, the people elect the govt and some of those that are elected will alsohead other areas. For example the PM is also a MP.

3. Free Opposition1688 Bill of Rights; guarantee the king could not punish people for what theysaid in Parliament (s9) no member of Parliament can be held accountable for

what they have said in Parliament = freedom of speech. ParliamentaryPrivilege; to protect MPs from not being able to debate freely.

4. Civil Liberties protected by an independent and effective judiciary5. Freedom of Speech6. Democracy7. Separation of powers8. Treaty of Waitangi9. Parliamentary Sovereignty

10. An evolving Constitution11. Consent of the People12. Govt not abusing Power13. Rule of Law

The Governor General’s main role is to protect the constitution

Need 51% to get majority support and new legal order. (Rhodesia had support

of maj of people).



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Can‟t use doctrine of necessity to prop up revolutionaries, therefore can‟t stick to court‟s decision because it will support revolutionaries.

In this case they weren‟t un/successful so they can‟t be tried for treason because

the grundnorm has changed.

ABORIGINAL TITLE (Foreshore & Seabed):

Aboriginal Title

Established by a group of native people who:-possess the lands claimed-have possessed the lands for a substantial period

Benefits of the Title

starting point – full legal recognition of pre-existing and continuing M property rights.

Limitations

- Premised on assumption of Crown sovereignty- “traditional” uses of land - Evidentiary burden- Relative ease of extinguishment (Foreshore and Seabed Act 2004)

How is it extinguished

1. By statute - must be clearly expressed, partial or complete- ambiguity interpreted in favour of the Aborigines- compensation is required

2. By sale or cession to the Crown or proven abandonment (voluntary)

How has aboriginal title been applied in NZ?

R v Symonds (1847) Doctrine of ab title appliesKauwaeranga (1870) Fenton CJ finds M do have property rights to the

foreshore and seabed of Thames but won‟t award title,

just use rights.Wi Parata (1877) Prendergast CJ finds M cannot enforce ab title

property rights against the crown

Te Weehi (1986) Williamson J finds that M can claim customary rightsto fisheries



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Ngati Apa (2003) SC find that Ab title does apply and M can go to courtto ascertain their property rights to the foreshore and seabed

Native Lands Act 1909 Prendergasts legal principal was incorporated into

Statute

Foreshore & Seabed Crown legislated to extinguish ab title to foreshore Act 2004and seabed

Can the NZ Constitutional framework protect Maori against abuse of power? To a

great extent, New Zealand‟s constitution consists of constitutional conventions which include

rule of law, democracy, civil rights and natural justice. By following these conventions, the

government of New Zealand proves its legitimacy and responsibility and prevents abuse of

power.

Unfortunately, the Foreshore and Seabed Act is an example of when rule of law (law applies

equally to each person in that category) has not been followed. In 2003, several Maori iwi

and interest groups appealed to the Court of Appeal to determine whether the Maori Land

Court had jurisdiction to declare the status of the foreshore and seabed. The main issue

before the Court was due process; could the Maori Land Court enter into an inquiry to hear

the claim? Elias CJ concluded, “I am of the view that the appellants must be permitted to

proceed with their applications to the Maori Land Court”3. It was also held unanimously that

native property rights continued until lawfully extinguished and the onus of proof was on the

Crown4.

“The government subsequently and rapidly introduced legislation preventing Maori claims

and customary rights in the foreshore and seabed being heard by the Maori Land Court”.5

This resulted in a breach of rule of law according to the Waitangi Tribunal report that stated

there should be one rule for all, “A rule where all people whatever their race or colour had the

right to have their case heard in the Courts of Law without go vernment intervention.” 6

3 Attorney-General v Ngati Apa [2003] 3 NZLR 670

4Ibid, 643

5Joseph, R “New Zealand Foreshore and Seabed Policy Breaches Human Rights of Maori and including the

Right to Self-Determination” Select Committee Report on the Foreshore and Seabed Bill Extract , August 2004, 26 ‘Tribunal Findings Justified’ in New Zealand Herald, 8 March 2004



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By keeping the Legislative separate from the Executive and the Judiciary, New Zealand has

been able to limit abuse of power by allowing the courts to apply the law without any

political bias or fear. However, New Zealand‟s Parliament is the only authority in the

country that can pass statutory law, thereby it has the power to overrule any court decision

that it disagrees with. This is highlighted by Helen Clarke‟s answer to the Waitangi Tribunal

saying, “Because of Parliamentary supremacy – the government can make and unmake any

law it likes”.7 This way of thinking shows how easy it is for the State to abuse its power and

blatantly disrespect democracy and fairness.

In addition, according to the Waitangi Tribunal Report, the Act “removes the ability of Maori

to go to the High Court and the Maori Land Court for definition and declaration of their legal

rights to the foreshore and seabed”8. This is a removal of due process and an extinguishment

of a person‟s rights as a citizen of New Zealand to have their case heard in a Court of law and

is an extreme breach of human rights and rule of law.

Furthermore, the Committee on the Elimination of Racial Discrimination in 2005 also agreed

saying, “The legislation appears to the Committee...to contain discriminatory aspects against

Maori”9. The Special Rapporteur also reproved the government from a human rights

perspective.10

This Act not only goes against the New Zealand Bill of Rights Act, 1990 (NZBORA) section

5 but also the International Covenant on Civil and Political Rights due to the discriminatory

effect it has on grounds of race11 and the right to natural justice.12 When a Bill is inconsistent

7Prime Minister Helen Clarke, Interview on the Foreshore and Seabed, on One News 8 March 2004

8 Waitangi Tribunal, Report of the Crown’s Foreshore and Seabed Policy (Wellington, Legislation Direct, 2004)

xiii9

United Nations Committee on the Elimination of Racial Discrimination, New Zealand Foreshore and Seabed

Act, 2004, Decision 1 (55) 17 February – 11 March 200510

Stavenhagen, R United Nations Report of the Special Rapporteur on the situation of human rights and

fundamental freedoms of Indigenous People, United Nations Economic and Social Council,

E/CN.4/2006/78/Add.3 13 March 2006, 711

Bill of Rights Act 1990, Section 19 (1)12 Bill of Rights Act 1990 Section 27 (1)



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with NZBORA, the Attorney-General must bring this to the attention of Parliament13

providing another check on the abuse of power.

However, The Committee on the Elimination of Racial Discrimination (CERD) said, “The

requirement whereby the Attorney-General may bring to the attention of Parliament any

provision of a Bill that appears to be inconsistent with the NZBORA is insufficient to

guarantee full respect for human rights, in particular the right not to suffer from

discrimination based on race, colour, descent or national or ethnic origin”.14 This highlights

another Constitutional Convention that cannot protect Maori from the abuse of power by the

State.

New Zealand‟s constitution regards elections as an extremely essential part of the constitution

with the Mixed Member Proportionate voting system (MMP) that ensures any Bill passed

reflects the majority of Parliament and therefore reflects the majority of the people.

However, as Maori are a minority, their rights may easily be put aside for the “good of the

nation” as seen in the Foreshore and Seabed Act.

Yet, MMP proved to support Maori interests as the final outcome of the Act was the defeat of

the Labour party at the last elections. The Act also provided the impetus for the creation of

the Maori party that now has considerable power in Parliament and is successfully in

negotiations with the present Government to repeal the Act, proving there are Constitutional

frameworks in New Zealand that can protect the interests of Maori.

Moana Jackson raised the question, “How can this country establish constitutional

frameworks that recognise the equally legitimate sovereign rights of Maori and the Crown toexercise governance?”15

According to Raj Vasil, the federal principal could be adapted and applied to suit the unique

New Zealand ethnic situation. He describes two possible ways of effecting that; the first is

13 Bill of Rights Act 1990, Section 7

14United Nations Document CERD/C/NZL/CO/17 Concluding Observations of the Committee on the

Elimination of Racial Discrimination (15 August 2007)15

Jackson, M “Where Does Sovereignty Lie?” In James, C (ed) Building the Constitution (Wellington: Institutionof Policy Studies, 2000) 197



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by dividing New Zealand into four provinces based on territory and the second is a Maori

state within the State based upon ethnicity rather than territory. The second option could

work in a similar way as the Vatican in Rome with Maori enjoying “limited powers and

authority derived from a written constitution and not the government of New Zealand”.16 This

would allow the Maori state to have responsibility for their health, housing, education, media,

culture and language.

According to Maaka R, and Flera, A, indigenous people have the right for self-determination,

“to exercise control over land, their lives, and life-chances” allowing “indigenous peoples to

move away from state determination”.17 This is confirmed by Article 3 of the United Nations

Declaration on the Rights of Indigenous Peoples.

The Special Rapporteur18 made recommendations to the New Zealand Government, stating

The Treaty of Waitangi19, the NZBORA and MMP should be entrenched constitutionally in a

form that acknowledges Maori world-view and regulates the relationship between Maori and

the Government. He also said the Waitangi Tribunal should be granted legally binding

powers and given more resources and furthermore, Legal Aid should be available to Maori

collectives (not just individuals).

TREATY OF WAITANGI:Cases Maori Interest

Progressed

Maori Interest

Not Progressed

Judges

Justification

Comments

R v Symonds

[1841]

The question is,

“who had title tothe land,Symonds orMcIntosh?”

Ab Title must beprotected on moral(natural law) andlegal (positivist law)

grounds.

Ab Title to berespected. The

Doctrine of Imminent Domainmeans Crown hasparliamentary

sovereigntytherefore they canextinguish nativetitle.

Governor Fitzroymakes a decision(proclamation)which goes

against Rule of Law.

Doctrine of ImminentDomainprevails

16 Vasil, R “Indigenous Rights and the Constitution” in James, C (ed) Building the Constitution (Wellington:

Institution of Policy Studies, 2000) 21717

Maaka, R and Flera, A The Politics of Indigeneity – Challenging the State in Canada and Aoteoroa” in James, C

(ed) Building the Constitution (Wellington: Institute of Policy Studies, 2000) pg. 3718

Supra n14 at 20-2319

Also backed up by CERD, stating, “The Committee recommends that the State party consider granting the

Waitangi Tribunal legally binding powers to adjudicate Treaty matters.” Supra n 18 at 4



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The governorwaived theCrowns right to

pre-emption(article 2 of Treaty of Waitangi whereMaori must sell toCrown) for MrMcIntosh.

treaty didn‟t createthese rights butaffirmed them(common law

rights).

Maori can do whatthey like amongthemselves (right toself-determination)

Kauwaeranga

[1870]

First foreshoreand seabed casein NZ

Hoterene Taupiri& others appliedfor certificate of title overforeshore &seabed.

Basis for claim:

Aboriginal Title:Maori always hadthe land.

Recognition of landused by Maori forcultural practises

(Useful Domain).For the use andpossession of thelands.

Recognition that theindigenous peoplemust be dealt withsincerity and goodfaith.

The Treaty

recognised as acompact (a contractbinding inInternational law).

Recognisedgovernance of Maori and

possession of landsbut notsovereignty.

Rejected Maoriclaim to possessionof foreshore andseabed.

Maori cededsovereignty to thecrown but kept

governance whichmeans they areusing the Englishtext and not themaori text whichsays they keptsovereignty.

Maori did not get acertificate of titlebut

Although theyhave AboriginalTitle, Judge can‟t

give them title tothe Foreshore andSeabed, due to thegood of PublicInterest.

Te Weehi [1986]

Tom Te Weehigatheredundersized pauaand he appealedbased on Maorifishing rights.

Judge FentonacknowledgesAboriginal Title andrecognises theTreaty affirms therights of the AbTitle.

Judge says that if the Ab rights have

not been clearly

Only a customaryright to takeshellfish but not acommercial right.

Judgeacknowledgesthere is acustomary right totake shellfishaccording theirnative rights.There can be acustomary right tofish even if there

is no ownership of



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extinguished (bylegislation) thenthey still exist today.Therefore customary

fishing rights stillexist today.

He overrides thedecision made byPrendergast in WiParata and says weneed to recogniseMaori have theirown law (tikanga).

the foreshore andseabed.

Public Interest

Ngati Apa [2007]

Several iwi andinterests appliedto Maori landCourt for

declarations as tothe status of landcomprised of foreshore andseabed.

Treaty affirmedproperty rights toMaori.

Crown must respectM usage and

property rights.

No legislation inprecise termsextinguished any Mproperty interests intheforeshore/seabed.

Tikanga overridesCrown prerogativeand only way to

extinguish is by

1. Maori landCourt has jurisdiction abilityto hear andanswer questionsregarding

foreshore andseabed.

2. Overruled Ninety Mile

Beach decision

3. held Mcustomary land isrecognised in NZcourts

4. held legislation



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selling or by statuteand it must be clear.

Argued the ninety-

mile beach judgement and wi-parata case madebad law andshouldn‟t be followed.

did not expresslyextinguishcustomary title

Te Runanga o Te

Ika Whenua

[1994]

BOP electricpower board owns

two dams and TeIka Whenua haveinterests in therivers.

Basis for claim =ab title

Extinguishment of ab title has to bedone through statuteand it must be withclear intent.

If ab title isextinguished as aresult of nationalinterest there mustbe compensation

AcknowledgesTreaty and Ab title but it doesn‟textend toelectricitygenerated by dams

as this wasn‟t donetraditionally.

Appeal dismissedbecause thegeneration of power were neverconceived at thetime of signing

the Treaty.

Similarities between the first four cases are Doctrine of Imminent Domain

prevails, Aboriginal Title is to be respected and the Treaty didn‟t create these

rights but affirmed them. Ab Title has not been clearly extinguished and

therefore still exists today. But Maori ceded sovereignty and kept governance

and “Public Interest” is more important.

Question One

A. What is the contemporary legal significance of the Treaty of Waitangi? Your

answer should include reference to:

(i) Articles of the Treaty of Waitangi

(ii) Issues regarding interpretation of the Articles of the Treaty

(iii)Legal status of the Treaty as stated in Hoani Te Heuheu Tukino v Aotea District

Maori Land Board [1941] NZLR 641



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(iv) The Court of Appeal’s interpretation of the Treaty in New Zealand Maori

Council v Attorney-General [1987] 1 NZLR 641

[20 Marks]

B. The Maori Land Court has had three distinctive roles since its establishment in

1862. Outline these roles and discuss how they have changed over time.

[5 Marks]

i) Articles of the Treaty

See “systems test” pg 10

It is obvious that significant differences exist between the Maori and the English texts of the

Treaty and that the Maori text is not a correct translation of the English version. While this is

the result of numerous linguistic and cultural differences, it has been alleged that the choice

of words may also have been deliberate in order to “sell” the Treaty‟s contents to Maori.

ii) Interpretations of the Treaty Articles

Preamble

In the English version the preamble sets out the desire and justification for the establishment

of British sovereignty and civil govt in NZ. The Maori text is simplistic in translation and of

particular interest is the use of the word “kawanatanga” to denote both “Sovereign authority”

and “civil government”. The deliberate use of this word has raised some significant

interpretative problems, particularly in relation to Article I.

Article I

This article is central to one of the greatest interpretative dilemmas in the Treaty debate.

According to British expectations and intentions, it required that the Maori chiefs cede

absolute sovereignty to the British Crown. “Sovereignty” was an important term in this

context establishing the Crown's jurisdiction and ability to make laws for New Zealand it

would be recognized both nationally and internationally. The Maori word “kawanatanga”

was used to denote “sovereignty” but in fact the strict interpretation of the word means

“governance”. Governance implies a lower standard of authority than that of sovereign



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rulers. Accordingly the Maori version cedes less to the Crown and reserves much more to the

chiefs then does the English version (F M Brookfield, 1992).

The use of the word “kawanatanga” has created significant controversy as to the true meaning

of article 1. This has resulted in much academic debate and has proved to be almostimpossible to reconcile. Maori believed that they were making a limited concession of

rulership; believed that the Crown would have some limited power to protect Maori against

the lawlessness of British subjects, rather than have the power to order and rule their lives

and tribal practices.

PROTECTION V RULERSHIP

Article II

The Queen was said to confirm and guarantee to Maori the full, exclusive, and undisturbedpossession of their lands and estates, forests, fisheries and other properties so long as it was

their wish to retain the same.

The words “te tino rangitiratanga” were used in the Maori the text to convey the meaning of

undisturbed possession of properties. Its literal translation is the unqualified exercise of

chieftainship over their lands, villages, and all the treasures (Sir Hugh Kawharu New Zealand

Maori Council v A-G [1987].

POSSESSION V CHEIFTANSHIP

When viewed in conjunction with Article I, it appears the Maori text is irreconcilable with the

English version. The Maori text can be interpreted to mean that Maori were to maintain their

sovereignty with a lesser concession to the British.

Use of the word “taonga” to denote possessions that were guaranteed has also been of some

importance, particularly in relation to recent claims by Maori for “intangible possessions”.

Taonga translates to “treasure” which encompasses non-material things such as culture,

language and art.

The 2nd part of Article I also raises some interpretation difficulties. The English version

claims to secure to the Crown the exclusive right to pre-emption. There was no Maori term

equivalent to the concept. “Hokanga” was the chosen translation but does not mean “sell” in

the same way Europeans mean it. It is more like “borrow” or “use”.

Article III

This article presents fewer difficulties than the previous two. It extends to Maori the rights

and privileges of British subjects. The effect of this provision is to provide that Maori and

Pakeha are “equal before the law”.



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In summary, the two versions of the Treaty have caused great confusion. The British, on one

hand, viewed the Treaty as a treaty of cessation, by which they attained sovereignty over NZ.

Maori, on the other hand, perceived that their sovereignty was retained with some lesser

concession of rulership to the British.

In recent times, the Court of Appeal has attempted to alleviate these difficulties by refusing to

apply the literal approach to the Treaty and, instead, giving attention to its spirit and intention

( New Zealand Maori Council v A-G [1987]).

iii) Legal Status as stated in Hoani Te Heuheu Tukino

Te Heuheu established the extent to which the treaty could be enforceable in Court. The rule

derived from this case is that “any rights purporting to be conferred by... a treaty of cessioncannot be enforced in the Courts, except in so far as they have been incorporated in the

municipal law (p596). The plaintiff was therefore not able to rely on the Treaty as a direct

source of legal rights but was required to refer the Court to some statutory recognition of the

right claimed. In this case the statute had been repealed.

After WWII, a shift in the general attitude towards the Treaty is clearly discernible. This

change has occurred on a much greater scale over the last 20 years. As a consequence, there

have been a number of significant legal developments. In 1975 the Waitangi Tribunal was

established to investigate Maori claims and there has been a marked increase in legislative

recognition of the Treaty (Environment Act 1986, SOE Act 1986, Conservation Act 1987).

Judicially, the most significant decision reflecting the “new” attitude towards the Treaty and

Maori interests is the 1987 New Zealand Maori case.

iv) New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641

In 1986-87, the govt reorganised the public sector and embarked on the process of creating

state-owned enterprises (SOEs) which was the first step towards privatisation and involved

the massive transfer of Crown assets to SOEs by the State-Owned Enterprises Act 1987.

Understandably, many Maori had concerns because once land had past to a third party, there

would no longer be a place for Maori to make any claims to that land. In response to the

Waitangi Tribunal, two provisions were inserted into the Bill.

Section 9: “Nothing in this Act shall permit the Crown to act in a manner that is inconsistent

with the principles of the Treaty of Waitangi”.



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Section 27: set out a procedure for dealing with pending and future Tribunal claims. It

stipulated that there would be no sale of SOE land to private interests if the land was subject

to a Tribunal claim lodged prior to the Bill getting royal assent.

In the NZ Maori case, the Court was required to determine the relationship between ss9 and27. The NZMC (NZ Maori Council) argued that s 9 offered statutory protection in relation to

any transfer of Crown assets. The Crown submitted that s 27 was a code that would have the

effect of completely overriding the provisions of s 9. Secondly, the Crown argued that s 9

did not apply to the transfer of land (as opposed to other assets).

The Court rejected the Crowns argument and upheld the NZMC‟s claim. It had not been

Parliaments intention that s 27 was to be a code and thereby used to defeat the purpose of s 9

or that it excluded land. The Crown had breached s 9 by not having regard to the principles

of the Treaty.

The case has been hailed as a landmark judgement “this case is perhaps as important for the

future of our country as any that has come before a NZ Court” (Cooke P, p651).

However, the Treaty cannot be enforced unless incorporated into our domestic law.

The decision is important because it attempted to clarify the relationship between Maori and

the Crown by regarding their interaction to be in accordance with the “spirit” and “principles”

of the Treaty. The Council abandoned a literal interpretation of the documents in favour of a

more liberal approach. The Treaty was seen as a “living instrument” (p655-656, Cooke P)

capable of continuing evolution.

The Court applied the principle of partnership where each party must act in a spirit of

reasonableness and good faith toward each other and that the Crown must actively protect

Maori in relation to use of land and other interests (p 664, Cooke P). However, there was no

general duty to always consult Maori.

The Court also drew an analogy between partnership and fiduciary duty. Fiduciary

partnership require parties to act in utmost good faith and trust toward each other.

b. Maori Land Court

The Court is empowered to investigate Maori land issues.

1. To investigate and order change to the title of Maori land

2. Appoint trustees for that land

3. Change the status of Maori land

The Treaty of Waitangi has great impact on the way the jurisdiction is exercised.



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Question Two: Abuse of Arbitrary Power: Waitara

Suspension of habeus corpus (right to fair hearing, innocent until proven guilty), use of armed forces and subsequent legislation.

What role did propaganda and the use of media have in vilifying (make malicious

statements about) Wiremu Kingi? Why?

Who benefitted from this?

What fundamental rights were violated with the passing of legislation at the time?

What parallels are there between Nazi Germany govt and colonial govt?

What role to lawyers/law students play in the restraint in arbitrary power?

Up to 1827, Waitara was occupied by Ngatai-Awa by unbroken descent from remote

ancestors.

A section of Ngatai Awa moved down to Waikanae (Wellington) in order to establish trade

with the whalers and settlers.

1830 Waikato (Tainui) invades Waitara and South of Waitara Valley but never settled there.Ngatai Awa flees to Sugar Loaf Reef. Waikato retreated.

1840, Waikato is paid off as the “land owners” of Waitara

1842, Te Pakaru (chief of Waikato) moves from Waikato to take possession of Waitara but

Wi Kingi warns him off and Te Pakaru leaves.

1841 (one year after Treaty signed) settlers move to New Plymouth in order to establish

farming and agriculture (nz is based on farming and ag) established by Carrington through

Colonel Wakefield.

1844, Commissioner Spain recommended title to Taranaki be awarded to the Settlers. A lands

claim investigation and was overturned.

1858, More natives than settlers during this time and they owned 2 million acres of land

while the settlers only had 60,000 land that is described as they most rich and arable soil of

the colony.

1859, Governor Gore Browne upholds the sale by Teira to NZ Company



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1844 Taranaki Question Investigated

Commissioner Spain awards title to the settlers on the assumption that the enslaved or

fugitive members of Ngatai-awa Tribe had, by their captivity or absence, lost all claim to the

land. Just an assumption without any research.

Governor Grey overrules the Land Commissioners recommendation. “He would allow in all

their integrity the claims of the Ngatai-awa tribe who were not parties to the sale in 1840”.

According to Carrington they had arrived in 1840 and agreed to buy the land from those who

were occupying it at the time. No evidence that those who agreed to sell the land had the

rights to the land.

Hursthouse describes the process for buying land, “the govt officers were scrupulous in

obtaining the consent of every individual interested; title deeds in Maori tongue, signed bymen women and children, conducted in public and all were satisfied both native and

European”. A solid process with the exception of Waitara.

1841, Potatau (first king of the kingitanga, from Tainui) received money for Waitara ($500).

No full investigation over who truly owned the land.

1854, according to Ngatai-awa, “no consideration on earth would induce those natives (from

Cape Egmont to Patea) to let or sell an inch of their land for any purpose whatsoever”.

Wiremu Kingi (pre-eminant Chief of Ngatia-awa, fought with Waikato, instrumental inallowing Wellington to be settled, had lineage to be considered sole owner of Waitara and

Maori custom allowed right of veto of Chief over any land dealings).

1854, Prosperity. Ngatai-awa tribe was very prosperous under Wi Kingi.

Teira was a landseller and beloved of the settlers. (member of Ngatai-awa under Wi Kingi,

grudge against Wi Kingi). “Sold” his part of the share of Waitara to the settlers. But when

translated into English, they left out that it was Teira‟s part of the share that was being sold.

So when asked if Teira owned the land Wi Kingi said yes because he owned it in addition to

everyone else in the tribe.

Governor Brown upheld this sale.

Teira was therefore considered to be “loyal” due to selling the land.

1880, legislation that took land off the “rebel” Maori; West Coast Settlement Act 1880.

Made it legal to take Wi Kingi‟s land when he didn‟t want to sell. But under s 4 of that Act,

“land shall be set aside/reserved for loyal Maori” and Teira was considered to be loyal. So in

1880, Teira came back and asked where is my land? I was loyal. So when the crown went

back to investigate, Wi Kingi‟s interest proven, reserve created and taken under Maori



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Reserve Lands Act, moved to market rental 2000 (Jim Bolger). – some justice but a long,

long time after.

British prime minister approved of 10,000 soldiers to come to nz to settle matters (land wars)

and create peace. But the minister wasn‟t told that it was to take land off those who are justtrying to protect their land from being taken off them or that the instigators were the NZ

company.

After Wi Kingi is charged with rebellion he stated, “friend colonel Murray, salutation to you

in the love of our Lord Jesus Christ”, and explains with love that he is not in rebellion and has

no desire for evil but for love.

Richmond confesses that military force is required to get the land they want. By affecting the

natives to the point of rebellion, they could get the land. They knew that Wi Kingi had claim

to the land and he would defend it and so now they are “legally right” to attack and go to war.

The Waitangi Tribunal on Governor Browne and Waitara incident

The causes of the war are many. In this case, they point generally to the conclusion that the

governor started it. Most especially he disregarded maori law and authority...the disregard of

customary tenure, institutions and process occurred despite the advice of the Board of Native

Affairs. In that respect, the Governor‟s actions were contrary not only to the Treaty but also

to principles of law.

People in the NZ govt were saying, you can‟t do this, this is wrong but the demand for landfor the settlers was very strong.

Media influence

One settler at the time confesses, “why the very Gazettes were falsified, the Maori was on

one side and the English on the other and there were falsehoods on the face of it. The englsih

said, „the land is Teira‟s but I will not allow it to be sold‟. But on the Maori side, „the land is

Teira‟s but it is no more his property than the property of the rest of us, and I will not allow it

to be sold‟ which made all the difference. It was nothing but an attempt to rob the Wi Kingi

of his and; one of the most unjust things ever done”

Chief J Martin answers the question whether it was lawful and just to take the land by armed

force as “no”.

Chief Justice Sir William Martin brochure:

The Governor has no more right to seize land from Maori as he would if he were buying land

from a Pakeha. The Govt did not stay to obtain legal sanction for its act.



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The NZ company was then sold to the NZ govt so all the dealings of the NZ company then

became the dealings of the nz govt.

The Taranaki Herald complained that nothing had been settled and the following day, Mr

Richmonds brother wrote urging the use of force.

Who benefited from this?

Mr Richmond who was a member of Parliament for New Plymouth and was the Native

Minister. He and his relatives had money invested in Taranaki and he depended on the votes

of the people who were in the same position.

He spoke sympathetically of the Maori but his legislative proposals would do little to help

Maori, infact one proposal disenfranchised practically the whole of the Maori people and

another removed al disputes about the ownership of native lands from the jurisdiction of

courts of law.

He wrote to the Resident Magistrate in New Plymouth saying, “what the magistrates have to

do to place the Govt technically in the right is to bring the contumacy of the natives up to the

point of actual defiance of the Govt, ie High Treason”. It was hard to get the Maoris at

Waitara up to that required point though. The farthest they were willing to go in the way of

contumacy was to build a fort on the coveted land. It was enough and they were attacked.

“Mr Richmond was under steady and increasing pressure from his constituents, who had had

enough of negotiations and wanted resolute action.” (H Miller, 1966).

One of Richmonds kinsmen wrote, “teach the natives a lesson; occupy Waitara by force;

deport Wi Kingi, if the natives fire a shot hang him together with all the leaders” H. A

Atkinson to Richmond, 1860.

NZ prime minister (Mr Stafford) wrote to his Native Minister urging the need for a „srong‟

party in NZ and for „action‟. Two months later he was more precise; land question must besettled and that speedily. Large numbers of emigrants. He wrote, were already on the sea;

and land must be found for them. (Stafford to Richmond, 1859)

What rules were broken?

Everyone is equal before the law. Article III of the Treaty



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Article II of the Treaty (which Governor Browne upholds) that land is protected.

Maori appealed to the law. The day before the survey was attempted a former superintendent

of the province wrote to Mr Richmond that he had been informed by natives that the Waitara

people intended to obstruct the survey as far as was necessary to get someone arrested inorder to test what remedy they had in law (C. Brown to C.W. Richmond, 19 Feb, 1860)

This was correct as on the day of the surveying, a crowd of women and old men followed

him around and pulled up pegs (southern cross, Feb, 1860). They were unarmed (Taranaki

Herald, 1860) and there was no violence (Browne to Secretary of State, 1860) not even noisy

language and it was all done in the least objectionable way possible (Taranaki News, 1860) .

But no one was arrested.

It is clear why, because Mr Richmond‟s aim was not to convict some women and old men but

to provoke the chiefs to fight (to bring contumacy).

Numerous appeals for judicial inquiry were disregarded or rejected. A month after the survey

and four days before the fighting began, the leaders of the Waikato tribes asked for an inquiry

but no notice was taken (Halse to Smith, March 1860) and a month after that Bishop Selwyn

demanded a judicial investigation (Selwyn to Stafford, april 1860) with the same result.

Later in the year similar requests came from the retired Chief Justice Sir William Martin and

leading cheif (Renata) of Hawkes Bay and from the leading cheif of Waikato.

Nothing is more remarkable about the whole affair than the willingness of the Maori leaders

to have the dispute settled by some form of judicial inquiry. But the govt had other ideas andso fighting came; but the govt had to start it.

When the troops landed in from sea at Waitara on 5 march, 1960, the people fled the

approaching soldiers and watched from a distance as their houses were burnt down. This

continued for 10 days without Maori firing a shot but instead they built a fort on the disputed

block and on their refusing to abandon it, Colonel Gold opened up on them with rockets and

24 pound howitzers, and the war was on.

This is what Mr Richmond had carefully orchestrated. They only fear of some of his

Taranaki supporters was that fighting might stop too soon. The „rebels‟ wrote the editor of Taranaki Herald „have the effrontery to make some sort of overture of peace...there can be no

peace with murderers and assissins” (referring to the deaths of three settlers 10 days after the

troops attacked the people of Waitara).

Parihaka was invaded 5 November, 1881. It was a prosperous village. They only way they

could have any survival was through peaceful surrender and peaceful process. Te Whiti

advocated the pulling out of survey pegs and then digging in gardens etc.



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“Place your trust and forbearance in peace...let the booted feet come when they like, the land

shall remain firm forever...I stand for peace. Though the lions rage still I am for peace...I am

here to be taken” Te Whiti.

Soldiers led by John Bryce who later became the native minister and he instigated the policyof shoot the Maori on site. His nickname among Maori is “the murderer”. He was native

minister.

The soldiers were met by children playing on the road side and the women were singing but

the soldiers were so amped for war, they ramsacked the village for two months. If they had

met the soldiers with force they would have died, no question, so in order to survive so that

injustice could be redress later at an appropriate time.

Governor A Gordon, “Te Whiti advocated peace and non-resistance...his main offence has

been....that he is opposed to the passing of land from natives into European hands.

A Royal Commission showed that “natives had disappeard, in which their dwellings and

cultivations had been destroyed, to which British subjects demanded that no native should be

allowed to return, and in which when a poor creature came back to seek for a resting-place he

was shot without enquiry and apparently without exciting remark until, in later years, a Royal

Commission recorded the occurance without condemnation.

New Zealand Hansard 1882, Sheehan stated Bryce (the native minister) was;

“putting his foot down on the Native race again. They only want their rights...I do not seewhy justice should not be given them”

Question Three:

The social and legal problems of the future can no longer be dealt with only in the

context of domestic law. Discuss with reference to a pressing international concern

(nuclear war) with particular response to the context and the legal response in question.

Nuclear war is the antithesis of everything. It is five minutes to midnight; the threat of asecond nuclear age and the expected consequences of climate change push the Doomsday

Clock closer to midnight. There are approximately 30,000 nuclear weapons on the face of the

earth at present; each one containing 4 x the magnitude of Hiroshima. There is a 15 minute

warning to respond. In one lecture (1 hour) could have four NW exchanges. There is the risk

of accidents (lost them, run them over, fires) but by pure grace of God we haven‟t set one off.

150 “woops”.

With nuclear weapons; there are no survivors. Even the innocent, the civilians, will die. The

1982 Independent Commission on Disarmament and Security Issues warned, a full scale

nuclear exchange could bring about the extinction of humanity. The extent of the



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environmental damage is described by Al Gilespie in “The Illusion of Progress” as having the

potential to destroy the functioning of most of the ecosystems on the planet following the

nuclear winter.

Despite the possibility that such weapons could bring the end of the human race, in terms of international law the question of whether they are illegal to possess, or use in self defence if

necessary, has been avoided. That is, despite the cataclysmic risk they represent, they are not

prohibited, illegal or even questioned; therefore, any decisions to reduce weapons have to be

made by negotiation.

Humanity had a window of opportunity after WWII before the cold war started. One year

after the atomic bombs were used in Japan, the USA put forward the first attempt to control

the future use of such weapons. Eisenhower said US (in good faith) would hand over their

NW to the UN. The Barach Plan (at the first session of the UN Atomic Energy

Commission): The complete transfer of all US weapons, atomic power facilities and atomic

know-how to international control. The Soviets rejected the US proposal, calling it a

transparent attempt to monopolize NW to the disadvantage of all other states.

Up until the 1960s there were very few limitations or controls on NW. The first law was in

1963 with President Kennedy and the first law was the Partial (Atmospheric) Test Ban

Treaty (which only the USSR and US abided by:) no more atmospheric testing of NW. It

was the first step in building a system.

In 1968, second law; The Non-Proliferation Treaty(NPT) which was reviewed in 1995 and

2000; tried to stop the proliferation of nuclear weapons to states other than the five

superpowers.

In 1972, towards the end of Vietnam war, the first Strategic Arms Limitation Talks (SALT)

agreement was signed to reduce the number of weapons. The cornerpiece of SALT I was the

third law; The Anti-Ballistic Missile Treaty, 1972; the idea of this treaty is that we don‟t

build defences against NW. Mutually Assured Destruction (MAD) because both sides

know that they can completely obliterate the other side (everyone, including the children). If

both have the same fear, then both have incentive not to allow war but if one has a defence

then you might wish to strike them before the defence is made. The theory has taunted thosethat don‟t like NW but the theory has worked for the last thirty years because the Russians

were rational and so were the US „cos neither side wants to die.

1979, preparing for SALT II; further reductions on NW. No sooner had the negotiations

been pencilled in, the Soviets decided to invade Afganistan which led to Regan ripping up the

SALT agreement and saying, „no more NW agreements with the Russians‟. Regan set up an

entirely new approach to arms control (and proliferation) which was eventually to become the

START (Strategic Arms Reduction Talks). However, between 1980 and 86, Regan stoked

up the arms race. It equated to 3.6 tons of TNT per person on the planet at that time



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(overkill?). He‟s working on an irony; the irony is the man who takes us closest to N war is

the one who brings peace. In 1986, > double NW of today.

The first real break-through in nuclear arms controls in the period came with the 1987

Intermediate Range Nuclear Forces Treaty (INF) which eliminated an entire class of nuclear offensive arms and established an intrusive on-site inspection regime.

Soon after came START I (1991): which limited US and Soviet strategic offensive forces

and (7,600 NW each) and in addition built elaborate verification and on-site inspection

regimes.

START II (1993); banned the use of Multiple Independent Re-Entry Vehicles and mandated

even deeper cuts in strategic forces. This treaty has not been ratified by Russia but has by the

US, has been supplemented by a framework START III which has detailed verification and

dismantling regimes. If all the START agreements come into fruition, the numbers of strategic warheads will be reduced to between 3000 and 3500 on each side.

The focus on NW reductions have between the superpowers have meant that other confirmed

nuclear powers (China, France, India, Pakistan and the UK) have not partaken in reduction

talks. There are many undeclared but states that are suspected to have NW such as Israel,

North Korea, Iran and Libya. Such concerns have lead to the 1995 NPT Review and

Extension Conference and the Comprehensive Test Ban Treaty (CTBT); to ban testing not

only in the atmosphere but everywhere. The CTBT was eventually agreed to by all five

nuclear powers but in 1999, the US Senate refused to ratify the CTBT resulting in the treaty

being killed.

The NPT had a follow up conference to the 1995 meeting in 2000. The objective was to

fulfil the goals of becoming “universal, indefinite duration, and reduction of NW weapons

globally”. However the 2000 conference failed to achieve a timetable or specific

commitments, although the five central nuclear powers renewed unequivocal commitment to

the ultimate goals of a complete elimination of NW and a treaty of general and complete

disarmament under strict and effective international controls.

The situation was well summarized by the 1996 Canberra Commission: “the possession of

NW by an state is a constant stimulus to other states to acquire them.”

START III turns into new treaties (SORT), treaty between US and R, on Strategic

Offensive Reductions (SORT). This treaty is to take the number of NW down to 2,200 each

by the end of 2012. Still enough to destroy entire earth many times over. But things at this

point start to unravel. There is no verification protocol on the SORT agreements and the

treaty will terminate in 2012 so if you want to rebuild you can. We live in faith that US will

do what they say and R also. Problem is, neither side can be trusted and neither trusts the

other.



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In 2002, US withdrew from the ABM Treaty (Anti-Ballistic Missile) causing Russians to

withdraw from the START I. This has caused the ABM Treaty to go, the Comprehensive

Testing Ban to go and SORT has no verification. It would be great if it were only the US

and Russians but now we are talking about unstable countries such as Pakistan and India and

North Korea. Iran are struggling for N power. More unstable regimes such as Libya, Syria.

In addition to the proliferation of new NW states; there is the collapse of ABM, the collapse

of START II, the lack of verification on the Moscow Treaty and failure of CTBT which has

resulted in the complete failure of N control.

The failure of the 2005 NPT Review Conference (the last review conference) not even a

conclusion could be agreed upon. Not even a statement could be agreed, couldn‟t get a

consensus. Not even a conclusion after four weeks of discussions.

The whole architecture of International law in trying to control NW is in disarray.

Since 1993 there have been 183 confirmed incidences of N smuggling and 18 of these

involving highly enriched Uranium. Although the biggest capture was 18.5kg (needs 20 kg

for NW) with all criminal activity you only see what you catch. The estimate is that this is

only a 5-10% snapshot of the actual movement of smuggling going on at the momement.

MAD used to work because humans are rational because the people involved were not

extremist radicals and they valued their lives and didn‟t want to die or to kill their children.But the people wanting NW today are no longer rational. It is estimated that there is a 75%

chance that within the next 10 years terrorists will get a NW.

That is pretty scary.

It is five minutes to midnight. “The risk is the non-rational actor,and so what we need is an

international architecture that can control the situation but we are no where even close to

that.” Al Gilespie “because if you have got a non-rational actor in the middle east and they

let off a small N device in Israel and Israel didn‟t know where that came from, Israel would

flatten the middle east and wouldn‟t find out where it came from. The risk is the domino

effect.

Solution: Need to be able to show there is a better alternative and remove certain catalysts.

Unless you can solve the problems in the middle east you will just create another generation

of anger.”

In overtly simplistic terms, disarmament is a strategy to secure peace. Conversely, arms

control is a strategy to secure advantage. Proponents of arms control often do not think that

peace is achievable because of deep conflicts between opposing nations. Nevertheless, arms



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controls are pursued because of the risks that are presented if such controls are not achieved.

This however requires some form of international security guarantor. The Canberra

Commission concluded that the only solution to the problem that could bring about the

extinction of humanity is the elimination of NW and the assurance they will never be

produced again. A very similar conclusion was reached in 1996 by the Generals for Peace

and Disarmament who recognised that the continuing existence of NW constitutes a peril to

the safety and survival of the people we are dedicated to protect.

Unfortunately, with nuclear powers insist on retaining their nuclear forces because they

believe no one and nothing else is strong enough to guarantee their security.

Bertrand Russell (Albert) Einstein Declaration in 1955 recognised that a new and powerful

supra-sovereign body must be created to control the possibility of an exchange of weapons of

mass destruction. Such a body would thus guarantee against the primary threat to global

security.

Despite the merit (and possible legality) involved in this suggestion, the way that the global

community is currently constructed suggests that any such powerful supra-sovereign body is

highly unlikely.

Verification process is essential to the achievement and maintenance of NW-free world but

this is highly intrusive and would be both expensive and unpalatable to many states.

We are five minutes to midnight and despite opportunities to reduce the NW even further,

these steps have not been taken. Humanity is stuck by a system which is outdated, wastefuland directly threatens the very survival of the planet.

Question B: ‘He toka tu moana’

This proverb refers to the rock that hold firm against the pounding waves of the sea. It

equates to Maori leaders who are steadfast and true, never wavering in their concern

for the people despite the pressure from others.

Discuss the qualities required of a traditional Maori leader. You may refer to male andor female leadership roles. What are the qualities required for the modern Maori

leader?

Structures

Whanau (family)Iwi (Tribe)Hapu (Subtribe)

Processes



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Whanaungatanga (relationships)Tika/Noa (right/wrong)Whakapapa (genealogy = glue)Utu (reciprocity)

Concepts

Te Wairuatanga (spirituality)Tapu/Noa (sacred/not sacred)Mana (leadership with credibility/reputation)Mauri (life force)

Hapu: dual meaning – sub-tribe and pregnancy because birth and new life occurs and isnurtured by the people together.

Iwi: dual meaning – bones and tribe = ancestral links

Whanua: dual meaning – to give birth and family = symbolic of human interconnectedness

Whanaungatanga: inter-relationships of the whole community – one to another.Relationships are vital to Maori social organisation. Maori do not operate in isolation. Theywork together as a whole unit. Inter-relatedness by whakapapa.

Tapu and Noa: both go hand in hand, one is not separate from the other. Used as civil orsocial control or prohibition. E.g. don‟t throw shells back into the sea.

Utu: balance through protection and maintenance of Mauri

Mana: can go up and down and is determined by good works

Different concepts:

Western Concepts: Te Ao Maori (Maori World View:

Individual CollectiveRights-based Obligation, duty and responsibility-based

Compartmentalised Holistic, Balance, complementary,interdependence of spiritual and physicalspheres

Traditional Leadership

“Nga toka tu moana” (rocks that stand steadfast at sea) refers to the leader who is able to

Withstand all the pressures of leadership, ie the relentless pounding of the waves. That leaderStands as a beacon for others to follow and emulate.

Mandate to lead came from:



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- Whakapapa or genealogy, either through one‟s mother or father. Both were important

and one could choose.- Acceptance and confirmation by the iwi. Demonstrated by a willingness to listen and

obey instructions.

- Humility- Confirmation by other iwi of leadership. Shown by acknowledgement at hui and on

marae.- Charisma, indicated by being able to inspire and to provide a vision for the members

of the iwi (Dame Te Arikinui Te Atairangikahu)- Ability to provide “manaakitanga” (hospitality and care) to the iwi and to “manuhiri”. - Such consideration gave mana (respect and prestige) to the iwi and loss of mana was

avoided.- Wisdom from extensive knowledge of whakapapa history and other specialist

knowledge- “Kanohi i kitea” (person seen) and “turangawaewae” (place to stand) refer to the

leader being present rather than delegating authority. Being supportive of the iwi bypersonal involvement. Putting the iwi before one‟s own interest. The leader is

required to have a place to stand, that is to which they can identify like land or marae.- A person with these qualities possessed mana (authority) and tapu (spiritually

sanctioned)- Tuakana/teina refers to the older and younger siblings. The tuakana had priority to

leadership but could be passed over if the older doesn‟t have ability.

Leadership Roles

Ariki: (paramount chiefs) was usually the first born of the most senior family in society(authority derived from whakapapa)

Rangaitira: who headed various hapu and collectively advise the ariki

Kaumatua: who headed whanau

Tohunga: who had specialist knowledge in particular fields, sometimes rangatira weretohunga too.

Maori leader expected to have a wide range of talents, but expected to consult otherswhen necessary. Ability to mediate.

Effect of colonisation:

- First contact saw mana of chiefs being indirectly undermined by a lessening in theMaori belief in tapu, the all pervasive spiritual force that controlled Maori behaviourand underpinned the mana of chiefs

- Tapu could be breached and no harm resulted, Christianity used the word tapu tomean „holy‟



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- The erosion of tikanga law and the breakdown of Maori social order added to thelessening of chiefly authority.

- Economic depression through the loss of land took away the ability to manaaki the iwi- Maori women leaders were not properly recognised.

- Some Maori leaders collaborated with the colonial leaders.

Modern Maori Leaders:

In modern Maori society seniority by birth gives only a very limited right to the exercise of leadership. The mana ariki still exists in the respect given to someone who is of theappropriate descent. Mention is made in obituaries and other public notices of a man being achief or rangatira of a tribe. But this respect operates at a formal ceremonial or ritual leveland not ordinarily in the affairs of everyday life. In practical matters, involving major policydecisions on the use of resources or the resolution of political problems, modern Maori

society has turned to those men who, for the most part, have been marked by superioreducation and have been successful in professional life – doctors, lawyers – or to men whohave demonstrated their ability to handle problems in a broad, statesmanlike way. A specialtype of leadership in this connection is provided by priests and other people prominent inreligious affairs. High birth, i.e., genealogical seniority, is an asset in such public affairs, butlack of it is no detriment. But leadership is exercised in many different contexts and atdifferent levels. Naturally the professional man, churchman, and Government official tend toexercise most authority in the spheres most directly concerned with their own experience. Atthe level of village affairs leadership may be provided by people distinguished for theirpracticality, their strong views, their multiple local kin connections, and other characteristics.

Here, skill in public speaking is very important.

Some of the principles of traditional Maori society still operate, if only to a limited degree, inthese gatherings. The convention that an elder should speak before a younger brother orcousin still operates generally, if only as an ideal. There is still the custom at some marae thatno woman addresses a gathering.

Maori leadership in traditional society owed much to women, but their role tended to be aprivate rather than a public one. Today they play a very important administrative role.

A striking feature of the modern Maori situation is the important role played by younger

people. This is partly because of the increasingly high level of education reached by many of them, and partly because of their conviction that they understand the problems and theworkings of modern New Zealand society better than do many of their elders. Fired with thisenthusiasm, many of them are keenly preoccupied with problems of Maori development andwelfare.



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Question A (1a)

Jack has a complaint about a lawyer, explain to him the process involved.

New Zealand Law Society (NZLS)

NZLS is internally administered body regulating all practising lawyers which functions:1. “gatekeeper” to the profession: ensuring that applicant for admission is a fit and

proper person of good character2. Enforcer of discipline – can suspend/disqualify lawyer from practising law if guilty of

misconduct3. Deals with complaints against practitioners: misconduct and incompetence based on

transgressions of rules and client care standards4. Makes and enforces rules of conduct for practioners: Ruls of Professional Conduct for

Barristers and Soliciters

5. Fidelity guarantee fund, which is funded by levy imposed on solicitors, from whichclaim may be made as a last resort for dishonesty on part of solicitor (essentiallyfraud); incompetence or negligence not covered

6. Check compliance with accounting standards to ensure financial discipline andprevent financial irregularities

7. Assists in making proposals for law reform8. Continuing legal education of practitioners

Rules of Professional Conduct

Lawyers and Conveyancers Act 2006

Rules are the result of consultation with members of the profession and others asMinister may direct: “open” rule making process

Essentially a statement of the standards of good conduct required and expected of practitioners

Ethical code. Does not have force of lawComplaints

1. Heard by the Standards Committee of the Law Society2. Can resolve disputes by negotiation, conciliation, or mediation; or laying and

prosecuting charges before Disciplinary Tribunal

3. Standards Committee can make orders of both compensatory and punitive nature, eg.apology, payment of money as compensation, order that work be done free of charge

4. Disciplinary Tribunal hears misconduct cases5. Whole process overseen by Legal Complaints Review Officer (akin to Ombudsman of

profession) – affected party unsatisfied with decision of Standards Committee may ask the LCRO review matter; can change decision of SC or refer matter to Tribunal.

Misconduct

S 7 of Lawyers and Conveyancers Act 2006: includes disgraceful or dishonourableconduct, wilful or reckless breach of rules, charging of grossly excessive costs



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Only misconduct if reasonably regarded by lawyers of good standing as disgraceful ordishonourable

Poor service or incompetence do not necessarily equate misconduct; most instances of dishonesty will likely amount to misconduct

Example: conviction for offences against Revenue Orders range from suspension from practice for a time (up to 3 years) to striking off.

Fine up to $30,000.

Unsatisfactory conduct

New term introduced in 2006 LCA as a ground for complaint and discipline

Amounts to conduct less serious than misconduct but which falls short of standard of competence and diligence that a member of the public is entitled to expect of areasonably competent lawyer.

Ethics

Loyalty to the clientConflict of interest to be avoided – both by actual and appearance of conflict

Between lawyer and client

Between on client and another client, eg both parties to same transaction (allowed if informed consent given)

Confidence, including confidentiality

A practitioner has a duty to hold in strict confidence all information concerning thebusiness and affairs of the client acquired in the course of the professional

relationship, and should not divulge such information Exceptions: consent by client or if in the public interest

Representation “cab rank rule”

A practitioner must be available to the public and must not, without a good cause,refuse to accept instructions for services within the practitioner‟s fields of practice

from any particular client or prospective client

Question A (1b)

Jack is from overseas and he would like to know how the NZ Court System Works

The New Zealand Judiciary Characteristics

New Zealand‟s judicial branch of govt comprises the Courts and the Judges who preside overthem. As with all common law countries, the Court system is hierarchical, with some Courtshaving higher authority than others.

(Diagram of hierarchy)

Functions of a Court



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Disputes resolution

Interpreting, applying and enforcing the law

Clarifying and developing the law

Adversarial System

Most New Zealand Courts operate on an adversarial basis: parties are opponents, each partyrepresents their side of case, judge acts as referee, judge or jury determines a winner. Judgeplays a passive role. There is always a winner and a loser. There are Courts in NZ howeverthat are inquisitorial: judge plays active role by asking questions, participates in determiningthe facts. The aim is to find the truth and there is not necessarily a winner or a loser. Moreexpensive system. Examples Waitangi Tribunal and Family Court

Open Justice and access to the Courts

It is a fundamental principle of the NZ legal system that Court proceedings are bothaccessible, and open to the public. The heart of the principle is that “justice must not only be

done but it must be seen to be done” (J Burrows, 1990). This principle can be broken down

into 3 factors:

The Courts must remain open, thereby allowing access to the Court by the public,subject to exceptions (privacy, interests of justice etc). The family court proceedingsremain closed.

Litigants and criminal defendants/accused have the right to a public hearing (s 25 of the NZ Bill of Rights Act 1990).

Transparency with regard to court records, evidence and judgments (law reports,

judgments on line).In all three circumstances, there is a right to publish those proceedings.

Open justice promotes judicial accountability; enhance the public‟s knowledge and

understanding of Court procedure and law.

The Courts should also be accessible to everyone and should not impose preferentialtreatment on certain groups. This principle is at times compromised, especially for lowersocio-economic groups that are disadvantaged by the high financial cost of bringing an actionin the Courts. The NZ justice system has attempted to address this through:

1. The establishment of Disputes Tribunal – offering a cheaper, less time-consumingdispute resolution.

2. Legal Aid – financial assistance for both civil and criminal matters3. The Duty Solicitor scheme – provides alleged criminal offenders with free legal

counsel on their first appearance in Court.4. Many lawyers also provide services voluntarily to organisations such as Citizens

Advice Bureaux and within prisons

Supreme Court



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The Supreme Court is New Zealand's final court of appeal since 1 January 2004, brought intoexistence by through legislation (Supreme Court Act 2003). The highest court previouslywas the Privy Council (based in UK) which served as a final court of appeal for whole Britishempire; decisions made before 31 Dec 2003 can still be appealed to PC.

According to the Supreme Court Act 2003, it was established to recognise New Zealand as anindependent nation with its own history and traditions, and improve access to justice andenable important legal matters, including those relating to the Treaty of Waitangi, to beresolved with an understanding of New Zealand conditions, history, and traditions.

As the court of final appeal, the Supreme Court has the role of maintaining overall coherencein the legal system. In general, the court will only hear appeals coming from the Court of Appeal. The Court may however in exceptional circumstances, give leave to appeal adecision of a lower court.

Appeals to the Supreme Court can be heard only with the leave of the court. It must giveleave to appeal only if it is satisfied that it is necessary in the interests of justice (s12 and s13Supreme Court Act 2003).

The court can sit only as a bench of five to hear substantive appeals. It is able to appointretired judges of the Supreme Court or Court of Appeal (under the age of 75) where it is notpossible to convene a court of five permanent members.

Composition: Chief Justice (head of NZ judiciary) and 4 or 5 judges; sits as a bench of 5 withdecision reached by majority vote.

The judges of the Supreme Court continue to be judges of the High Court, which maintainsthe formal integration of the higher courts judicature. The Supreme Court Act does notexpressly prevent the Supreme Court‟s judges sitting in the High Court. However, it is notappropriate, except in exceptional circumstances, for judges of the Supreme Court to sit in thelower court on a case which could end up before the Supreme Court.

Court of Appeal

Jurisdiction outlined in Judicature Act 1908 (brought into being by Judicature AmendmentAct 1957)

Appellate jurisdiction; meaning that this is not the first time for the case to go to court(original jurisdiction in very limited circumstances; has never been exercised). Hears appealsfrom High Court and District Court

Inherent jurisdiction (jurisdiction that is not granted by legislation, e.g. contempt of court – power of court – not made by statute but inherent law they decided themselves) in limitedinstances to control its own processes.



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Composition: President and 5 or 6 judges; minimum of 3 judges on a case; 5 if matter of public importance. Currently there is the P and 8 judges.

Decision made by majority vote.

Procedure: relatively informal with both the counsel and the Judges freely discussing andquestioning the facts and law pertaining to a case. Appeals are heard by way of rehearing.Although the Court has the power to hear further factual evidence, it is only in very rarecircumstances. Generally cases are heard by presentation of the record of the trial of theCourt below. Following the hearing, the Judges may present a single judgment or individual

judgements, including those in dissent from the majority opinion.

The Court of Appeal has a critical role in developing legal principle and maintainingconsistency in the application of the law. It supervises through appeal the judgments of theHigh Court and ensures consistent application of the law in the High Court.

The judges of the Court of Appeal have seniority over all the judges of the High Court,except the Chief Justice and the other judges of the Supreme Court. The President of theCourt of Appeal has seniority over the other Court of Appeal judges. Amongst themselvesCourt of Appeal judges have seniority according to the date of their appointment. Like allsuperior court judges (Supreme Court, Court of Appeal, High Court judges), Court of Appeal

judges are also High Court judges.

The Court of Appeal is located in Wellington but also sits regularly in Auckland andChristchurch.

If the Chief Justice is unavailable to be the Administrator of the Government, the next mostsenior available Supreme Court Judge will be authorised to perform this function.

High Court

Jurisdiction outlined in Judicature Act 1908

Almost unlimited original jurisdiction and also appellate jurisdiction from district courts andsome administrative tribunals

Inherent jurisdiction in limited instances (power to determine contempt of court), essentiallyto control processes

Called the Supreme Court up to 1980

Comprises: Chief Justice, judges (up to 55) associate judges (formerly called „masters‟ – theydealt with mostly commercial matters.

Procedure: very formal and traditional. In trials each party to the action has the opportunityof making an opening statement; evidence is presented (which may involve witnesses givingoral evidence); and at the close of evidence, the parties argue their respective positions. The

Judge then sums up the arguments and legal issues and presents his/her judgement.



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Sentence is usually passed down on the accused at a later date allowing counsel for theaccused. The prosecutor also prepares submissions on aggravating features of the offenceand the appropriate sentencing tariff. The Court may also request pre-sentence reports

(victim impact reports or psychiatric assessments).

Throughout the process, there may be many issues that need to be determined such as bailapplications; questions of admissibility of evidence; whether there is sufficient evidence toproceed to full trial. These applications are known as interlocutory applications, and areheard “in chambers” – in the Judges rooms or Court, with only counsel and Judge present.

Appeals to the High Court from the district courts or other courts are generally conductedthrough a rehearing. That means the High Court judge can come to a different decision to thelower courts on the evidence presented and on the law.

The High Court usually has its powers exercised by one judge. There is provision for theHigh Court to sit as a full court, which is defined as two or more judges sitting constitutingthe court. The full court is reserved for cases of particular significance. It is at the discretionof a judge to determine whether or not to constitute a full court.

Certain offences, because of their seriousness, can be tried only in the High Court. Theyinclude murder and Class A drug offending. Most indictable offences are in a 'middle band'category which can be heard either in the High Court or in the district courts. A High Court

judge determines, case by case, which court should hear the case. Because of the pressure of

work in the High Court, most cases involving offending in this middle band category are sentfor trial in a district court.

The High Court's criminal jurisdiction includes the sentencing of offenders who have beencommitted to it for sentence by a district court.

District Court

Jurisdiction outlined in District Courts Act 1947; specifically defined „creatures of statute”;no inherent jurisdiction; can only do what statute allows them to do.

District courts since 1980; formerly called magistrates courts

Original and appellant jurisdiction (appeals from Disputes Tribunal). Jurisdiction hasincreased in order to relieve High Court‟s workload.

Over 100 district courts; Chief District Court Judge as head; various divisions (family, youthetc).



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The New Zealand District Courts have general jurisdiction for jury trials (where themaximum sentence is less than life imprisonment), all summary criminal matters and civilactions up to a value of $200,000.The Family and Youth Courts are divisions of the District Court.

There are 133 District Court Judges. This includes the Principal Judges and Judges of theEnvironment Court.

In addition to the Judges there are 52 Disputes Tribunal Referees and approximately 400Justices of the Peace. They will often deal with minor offences instead of a judge.

Procedure: Far less formal than the High Court but similar procedure is followed but withless legal argument as cases are decided largely on facts. Much of the workload tends to beadministrative.

Disputes Tribunal

Formerly the small claims tribunal

Regulated by the Disputes Tribunals Act 1988

Cheap, efficient, little formatilies. Inquisitorial. No lawyers (except in limitedcircumstances)

Adjudicator known as referee; attempts mediation but if not successful will arbitrate.

Jurisdiction for claims in contract and tort up to $7,500 ($12,000 if parties consent);general jurisdiction in respect of consumer protection law.

Right of appeal to District Court but only limited circumstances where proceedings

conducted in unfair manner and prejudiced proceedings.

Judiciary

Judicial Independence

Free from any interference, political or otherwise

Non-political appointment process; appointments are not discussed in cabinet

Tenure; no reduction in salary during tenure

Judges cannot be removed on whim; requires address to parliament

Judicial appointments

Judges of Supreme Court, Court of Appeal, high Court, District Court appointed byGG on recommendation of Attorney-General

Criticism that process not open and transparent

Jury System

Regulated by Juries Act 1981Jury of 12 selected from electoral roll; decide factual issues; judge decides legal issuesSee 6.8 of McDowell and Webb for process outlinedUsed in criminal trials and civil trials (in limited circumstances)

Criminal trials – used where maximum penalty is 3 months imprisonment or more



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Civil trials – option when amount claimed exceeds $3000

Everybody has the right to be judged by one‟s peers. In the Court system this equates to the

use of juries.

There are a number of people disqualified from sitting on juries, including practising lawyers,police officers, members of parliament, and judges. The use of lay people on juries is said tooffer the trial process a fresh perspective on the proceedings, without hindrance fromtechnical and detailed legal thinking. The jury system also represents an opportunity formembers of society to participate actively in the administration of justice, and is, therefore,one of the closest links that the judicial system has with the wider community.

The Registrar of the relevant Court selects the jury for a particular trial at the first instanceby drawing a number of jurors by secret ballot. The lawyers who are involved in the case arealso granted some power to manipulate the final selection, by challenging jurors as they arecalled forward to the jury box. Through this process 12 jurors are chosen.

In the trial process the jury is confined to determining questions of fact. They are required tolisten to the evidence presented in Court; discuss the case with no one, other than themselves;are discouraged from listening to media reports which may taint their opinion. The Judge‟s

role, in relation to the jury is to explain pertinent legal issues at the conclusion of the trial in a“summing up”.

Disadvantages:

Jury trials are often lengthy and costly

Juries have been accused of being unreliable fact-finding body, particularly where theevidence or the legalities involved are detailed and complex.

In civil cases where juries may be called upon to define the amount of damagespayable to plaintiff, their decisions may be unrealistic and inappropriate.

Lack of experience in the justice system may mean juries are unable to evaluateevidence impartially, and instead bring to their verdicts individual biases andprejudices.

It is argued that they are particularly susceptible to making decisions based onsubjective, emotional factors.

The jury system is firmly entrenched in the administration of justice that is future role isabsolutely assured.



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Section 7 NZBORA

“7. Attorney-General to report to Parliament where

Bill appears to be inconsistent with Bill of Rights atthe introduction of the Bill into the House”.

Chris Finlayson is the current Attorney-General of New Zealand

Role of the Attorney General?

- Supervising the State‟s administration of the law - Providing legal advice to the government

• The Attorney General is recognised as being the principle law officer inNew Zealand.

• The Attorney General is expected to act in a non-political fashion – guided only by the service to fundamental principles of the Rule of Law

Purposes of the s 7 reporting duty

Butler and Butler: two purposes 1. “It makes NZBORA considerations a significant focus in the

government‟s formulation of legislative policy proposals and in the

drafting of legislation”

2. “...where the promoter of a Bill proceeds with a version that is

inconsistent with BORA, Parliament is informed of that fact and is able to

squarely address issues of BORA-inconsistency...”

Politicians are reluctant to trigger this report so they will try to ensure thedrafting of the Bill is done in a way so that a report is not required.

Processes behind a s 7 report

• Ministry of Justice provides advice on consistency in relation to all Billsexcept Bills emanating from the Ministry of Justice

• Crown Law Office provides advice on Ministry of Justice Bills



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• Section 7 reports are the ultimate responsibility of the A-G• Since 2003, all advice to the A-G publicly available on the Ministry of

Justice website

•

The A-G decides whether the Bill is inconsistent with BORA. If he/shefinds it is, then he/she determines if it is justified under s5 of BORA by:1. Important and Significant Objective2. Rational and Proportionate Connection

Where a Bill is found to be prima facie inconsistent with a particular right orfreedom, it may nevertheless be consistent with the Bill or Rights Act if theinconsistency is considered to be a reasonable limit that is justifiable under s 5of BORA. A limit on a right can be justified in terms of s5 were it meets asignificant and important objective and where there is a rational andproportionate connection between the limitation on the right and the objective.

An example of a s 7 report

The Wanganui District council Prohibition of Gang Insignia Bill. • Clause 3 of the Bill:

• “The purpose of this Act is to prohibit the wearing or display of

gang insignia in specified places in the District” • Clause 6 of the Bill:

• (1) “No person may wear or display gang insignia at any time in aspecified place in the District”

• (2) Every person who contravenes subsection (1) commits anoffence and is liable ....to a fine not exceeding $5,000 $2,000

• Section 14 of the NZBORA• Everyone has the right to freedom of expression including the

freedom to seek, receive and impart information and opinions of any kind in any form

The A-G found clause 6 of the Bill was inconsistent with s14 of BORA(freedom of expression, including the freedom to seek, receive, and impartinformation and opinions of any kind in any form). The A-G therefore bringsthis to the attention of the House of Representatives according to s7 of BORAand Standing Order 266 of the Standing Orders of the House.

The A-G decided it couldn‟t be justified according s 5 because it didn‟t pass the

test:1. Important and Significant Objective



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He agreed that this first part of the test could be justified becausethe prohibition of gang insignia would reduce the likelihood of gang confrontations and intimidation of members of the public

2. Rational and Proportionate Connection

He agreed with the rational but could not agree with theproportionality saying clause 6 is too broad and would limit a rangeof expression including political and cultural and even tattoos. Hesaid there are already laws in place to cover the behaviour thatprohibition of gang insignia is designed to address and the fine wastoo high ($2000)

He concluded that the Bill appears to be inconsistent with s 14 of BORA andthe inconsistency could not be justified under s5.

Deficiencies in s 7

According to Butler and Butler

1. The obligation only arises in relation to the introduction copy of a BillThere is no obligation for the A-G to report BORA inconsistencies that appear

in amendments to the introductory copy of a Bill.

Example; “home invasion” amendments to the Crimes Act 1961 and the

Criminal Justice Act 1985. Particular amendments were introduced by way of Supplementary Order Paper (SOP) by a non-government MP and formed part of a deal agreed to by the govt in order to be able to pass its “home invasion”

amendments. No report was undertaken on these amendments and they slippedonto the statute book without the benefit of a formal report.

2. There is no mechanism through which the s 7 reporting information canbe channelled, such as a select committee dedicated to the BORA

There is no productive use of the information gleaned through making a report

3. Borderline cases of inconsistency do not trigger a s7 reportBecause the A-G is only obliged to report when he/she is of the view that the

provision “IS” inconsistent with BORA and not “MAY BE” inconsistent, Parliamentarians are not advised of a proposed measure which is a matter of fine judgment and are kept in the dark on many issues.



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4. No transparency. Reports by the A-G that are found consistent with BORAare not released to the public and Parliament are not advised of those Bills.

Parliamentary sovereignty also means that even if a Bill is found inconsistent,there is nothing to stop Parliament from passing the Bill.

Suggestions for reform

1. Establish a dedicated parliamentary select committee to review BORA-consistency for every Bill

2. Expand the vetting duty beyond introductory copy of Bills to includeany amendments to the Bill – amend the Standing Orders so the A-G canreport BORA inconsistencies after the introduction of the Bill.

3. Release of all vetting advice received by the Attorney-General to thepublic and parliamentarians. At the moment this is not consideredOfficial Information in terms of s 2 (1) of the Official Information Act1982. Since 2003, A-G opinions are publicly accessible through the Minof Justice website but there needs to be more transparency as not allinformation is available on the website (only those Bills that are foundinconsistent are released – not those that are borderline but found

consistent).

Tessa Bromwich

“Of most concern is parliament‟s frequent failure to provide justificationfor the breaches of human rights identified by the Attorney General.”

Solutions

• Select committees need to increase the consistency in which they addresshuman rights issues, regardless of how closely breaches are connected to

bills‟ policy objectives.

• A culture of justification needs to be developed under which the membersin charge of bills subject to s7 reports are expected to articulate fully whythey consider the breach(es) identified by the AG is justified



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constitutional law exam prep

Documents